الحماية الدستورية لضمانات المحاكمة العادلة دراسة مقارنة Constitutional Protection to the Guarantees of Fair Trials Comparative Study

Date
2013-05-04
Authors
لينا محمد فهاد صبري الشلالدة
Leena Mohammad Fahhad Sabri Shalaldi
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Publisher
AL-Quds University
جامعة القدس
Abstract
The facts and the data of the contemporary life are reflected at all levels, including the Palestinian Basic Law, which necessitated to reconsider and revise many of the procedural- traditional rules in order to come out from the molded formalities. These rules are often unable to achieve the moral purpose which they have been enacting for. Therefore there is an evitable need for setting a wide range of guarantees which should be provided for the perpetrator in order to achieve a fair –natural trial. The public guarantees for human rights in a fair trial goes out to the extent in deference to general principles and set of the rules in the Palestinian national legislations regional legislations and international legislations and their strong affect to ensure human’s right in a fair trial. These rules and general principles are precept of independence of the court, precept of natural specialization of the subject case and, finally, precept of justice in the courts. This study aims to compare the guarantees for fair trial set out in the Palestinian Basic Law with those in the developed countries, which their regulations are based on the protection of rights and freedoms. It also highlights some of the negative aspects of those laws, which raise questions about the similarities and the differences between the laws of these countries on one hand and the Palestinian laws on the other hand. This means, there should be scrutiny and detection over the extent of the guarantees, in practice, according to the Palestinian Basic Law and laying recommendations to overcome them. The methodology that is used in this research is comparative descriptive analysis, conducted by selecting and determining the rules of a fair trial in the national legislation and comparing them to other national and international organizations. The constitution is the base of all other legislations. Furthermore, it is the source of powerful basic protections. The basic guarantees provided to an accused person stem from the constitution. Hence, constitutional law protects the accused person from any violation to his/her right to fair trial by state authorities, most importantly the judiciary and the executive authorities. The current study has found great deficiencies in the mechanisms that guarantee fair trial. For example, one can notice that there is a complete absence of accountability regarding those who violate rules of fair trial. Therefore, there is a need to activate the Constitutional Court in Palestine since it is the primary guarantor to the protection of human rights.
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Keywords
القانون, Law
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